If you want to “take back” federal lands, read Idaho’s Constitution

Those who want to sue the federal government over public lands need to brush up on Idaho's founding documents.

The Idaho primary election was conducted May 20 and as many River Journal readers are aware, I lost my bid for re-election. I was disappointed, of course, but I feel good about what I have helped accomplish for our state and northern Idaho during my tenure and want to thank all those who supported me as Legislative District 1-B Idaho State Representative. “THANK YOU”!!

In the last issue of the Journal I indicated that adoption of the Idaho Insurance Exchange was a significant issue for the legislative candidates and presented my position on that issue. Another significant issue was the amount of federal lands located within Idaho boundaries and how to get control or ownership of those lands for the benefit of Idaho and our economy.

Some candidates argued that the land originally belonged to Idaho and we should “take back our ownership of those lands!”

I disagreed with the premise that Idaho once “owned these lands and we should take them back” and stated that we should work with a consortium of other western states to get responsibility for management of these lands from the federal government for the benefit of the state rather than trying to get ownership through the courts.

My reasoning for this is based on three arguments that indicate to me that a legal challenge for ownership would not prevail in court. These are:

First, the Idaho State Constitution, under Article Twenty-One, Section 19 disclaims Idaho’s title to the federal lands. Quoted in part, this sections states” “And the people of the state of Idaho do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indians or Indian tribes; and until the title thereto shall have been extinguished by the United States…”

This language supports the argument that Idaho had never been given title to the federal lands not appropriated to the state at the time Idaho was granted statehood.

Secondly, the Idaho Admissions Act, section 7, reinforces Idaho’s disclaimer to the federal lands lying within the state by stating that in the event that any federal lands lying within the state are sold by the federal government, five percent of the proceeds after sales expenses shall be paid to the state to be used for support of the public schools. This language would indicate that the federal government is not bound to sell these lands to the state but can, in fact, sell to any willing buyer if the federal government chooses to do so, again reinforcing original government ownership of these lands.

The third argument relates to an action of the Idaho Legislature that in its twenty-ninth session passed Senate Joint Memorial No. 6 stating that: “NOW, THEREFORE, BE IT RESOLVED By the Senate of the Twenty-Ninth Legislature of the State of Idaho, the House of Representatives concurring therein, that we respectfully urge the President and the Congress of the United States to preserve public lands in Idaho in their present ownership status.”

The ownership status was identified as being Federal ownership in the body of the memorial.

Although I am supportive of any action that would ultimately provide state ownership of federal lands, given these instances of fact provided by the documents relating to formation of the State of Idaho and the action of the legislature in the twenty-ninth legislative session, it would appear unlikely that we, Idaho, could prevail in any legal action that would be aimed at “taking back” ownership of these federal lands. I would think that before we would expend taxpayer money on pursuing legal action we would want to have a stronger legal basis than what we appear to have now.

Given that, I submit that we join together with other states to encourage Congress to turn over management of these federal lands to the states who have already proved, in many instances, that they can manage public lands more efficiently than the federal government.

One example is a proposal presented by Idaho Governor Otter under provisions of Section 8204 of the 2014 Agricultural Act (2014 Farm bill) that outlines the authority of the governor to “request that the United States Secretary of Agriculture designate landscape-scale areas (treatment areas) on national forests that are at a high risk of insect and disease mortality.”

Governor Otter’s submission on behalf of Idaho under the Farm bill that designates 50 proposed treatment areas, covering 1,815,864 acres, represents a reasonable initial effort to begin addressing the forest health issues across the national forest system in Idaho. Assuming this proposal is accepted it will provide an excellent opportunity to further demonstrate Idaho’s ability to manage public lands more efficiently than the federal government.

Again, I support any action that would result in state ownership or management control of federal lands but we need to proceed in a direction that would provide the most chance of success. I am concerned that legal action aimed at “taking back our lands” would not be successful, but I do believe that there are other alternative actions that could achieve success.

Thanks for reading and as always, in the time I have left in my service as State Legislator for Legislative District 1-B, please feel free to contact me with issues of concern to you. My home phone is (209) 265-0123 and my email address is: [email protected] You can also reach me at my mailing address at P.O. Box 112, Dover, Idaho 83825. George